Friday, 20 December 2013

This blog and its blogger are going on a Christmas break. I wish all readers a very good and relaxing holiday season with hopefully many opportunities to be together with loved ones and to dream of a Europe and a world in which human rights will be more firmly protected for each and everyone. And what better way to illustrate this last post of 2013 than with a photo of the famous Strasbourg Christmas market. Joyeux Noël à tous!

I am happy to announce a conference that the University of Iceland Human Rights Institute is organising on 6 and 7 March 2014 in Reyjkjavik. The conference, entitled 'Shifting Centres of Gravity in European Human Rights Protection' is organised by esteemed colleague Oddný Mjöll Arnardóttir. This is the idea of the conference:

The protection of human rights in Europe is at crossroads. The European Union
(EU) is increasingly prioritising fundamental rights, for example by giving the
Charter of Fundamental Rights the status of primary law and through the
treaty-based obligation of accession to the European Convention on Human Rights
(ECHR). Accession, once it takes place, expands the mandate of the European
Court of Human Rights (ECtHR) and is likely to bring about fundamental
structural changes to the system of human rights protection in Europe, as
decisions of the ECtHR will be binding on the EU and its courts. However,
pulling in a somewhat different direction than developments in EU law, the
political momentum for bringing the responsibility for the protection of ECHR
rights ‘home’ to the member states has been growing ever stronger. This
repositioning of the centre of gravity of human rights protection is beginning
to take shape in two new Protocols to the ECHR, which emphasise the principle of
subsidiarity and the margin of appreciation enjoyed by the member states
(Protocol No. 15), and introduce a preliminary reference procedure under the
ECHR (Protocol No. 16). Finally, and in light of the crisis created by the
overwhelming case-load of the ECtHR, the Brighton Declaration of 2010 has put
the long-term review of the Court’s fundamental nature and role on the agenda
before the end of 2019. Overall, therefore, the future of human rights in Europe
faces major structural changes which could have significant consequences for
access to justice and the quality of protection provided to victims of human
rights violations.

This conference will explore these themes from the perspective that current
developments call for a critical assessment of classical approaches to the
three-dimensional relationship between the ECHR, EU law and national law; of the
theories and tools utilised to navigate this relationship; and of the effects
current developments may have on victims and vulnerable groups.

Registration can be done here. The full programme is as follows and can be found in PDF here:

Day 1 - Thursday 6 March 2014

08:30-09:00 Registration
09:00-09:15 Opening of the conference
09:15-12:15 The three-dimensional relationship between the ECHR, EU law and domestic law: Coexistence and cross-fertilisation in the context of recent developments - Chair: Dr. Antoine Buyse, Associate Professor, Utrecht University
09:15-09:45 Professor Davíð Þór Björgvinsson, University of Copenhagen, former judge at the European Court of Human Rights
Title TBC (The ECHR perspective on coexistence and cross-fertilisation)
9:45-10:15 Professor Xavier Groussot, Lund University
Title TBC (The EU perspective on coexistence and cross-fertilisation)
10:15-10:35 Coffee break
10:35-11:05 Dr. Giuseppe Martinico, Centro de Estudios Politicos y Constitucionales, Madrid
Title: National judges between EU law and the ECHR: The legacy of Kamberaj
11:05-11:35 Professor Björg Thorarensen, University of Iceland
Title TBC (Protocol 16 ECHR)
11:35-12:15 Questions and panel discussion

12:15-13:30 Lunch at the University cafeteria

13:30-16:30 Subsidiarity and the margin of appreciation: In need of some re-thinking? - Chair: Professor Björg Thorarensen, University of Iceland
13:30-14:00 Professor Andreas Føllesdal, Oslo University
Title TBC (Subsidiarity)
14:00-14:30 Professor Geir Ulfstein, Oslo University
Title TBC (Subsidiarity)
14:30-14:50 Coffee break
14:50-15:20 Professor Niamh Nic Shuibhne, University of Edinburgh
Title TBC (The margin of appreciation in EU fundamental rights jurisprudence)
15:20-15:50 Dr. Basak Cali, Senior lecturer, University College London
Title TBC (ECHR margin of appreciation - ‘responsible courts doctrine’)
15:50-16:20 Professor Oddný Mjöll Arnardóttir and Dóra Guðmundsdóttir, adjunct lecturer,
University of Iceland
Title: Speaking the same language? Comparing margins of appreciation at
the ECtHR and the ECJ
16:20-17:00 Questions and panel discussion

19:00 Conference dinner at Snaps restaurant

Day 2 - Friday 7 March 2014

9:15-12:15 Access to justice and effectiveness of protection: the effects of current
developments on victims and vulnerable groups - Chair: Professor Oddný Mjöll Arnardóttir, University of Iceland
09:15-9:45 Professor Philip Leach, Middlesex University
Title TBC (Access to justice and effectiveness of protection)
09:45-10:15 Dr. Antoine Buyse, Associate Professor, Utrecht University
Title: Flying or landing? The future position of the pilot judgment procedure
in the changing European human rights architecture.
10:15-11:35 Coffee break
10:34-11:05 Lorna McGregor, Reader, University of Essex
Title TBC (Alternative dispute resolution at the ECtHR and ECJ)
11:05-11:35 Dr. Alexandra Timmer, researcher, Utrecht University
Title TBC (Vulnerable groups)
11:35-12:15 Questions and panel discussion

Tuesday, 17 December 2013

A few weeks ago, the Grand Chamber issued its judgment in the case of X. v Latvia (appl.no 27853/09) on child abduction by one of the parents. The judgment relates amongst other to the "best interests of the child". I am happy to present a guest post by two experts, Christina Jeppesen de Boer and Merel Jonker, colleagues here at Utrecht University and connected to UCERF, the Utrecht Centre for European Research into Family Law. This is their commentary on the case:

Does
the European Court of Human Rights get it “right” or “wrong”
in international child abduction?

Christina
G. Jeppesen de Boer and Merel Jonker

Following
the judgments of the European Court of Human Rights (ECtHR) in Neulinger and Shuruk v. Switzerland (841615/07), Sneersone and
Campanella v. Italy (14737/09) and the earlier Chamber judgment of the Court in X v. Latvia, all cases concerning an application from an “abducting”
mother, the final verdict of the Grand Chamber in X v. Latvia was
awaited with much interest. There seems to be broad consensus that
the ECtHR is getting it “wrong” in international child abduction
cases. At least this seemed so in many contributions of this summer’s
2nd International Family Law and Practice Conference 2013, at London Metropolitan University.

All
the above-mentioned cases concerned a primary carer, a mother’s abduction
of the child to her place of origin following a divorce or
relationship breakup. In all cases, the national courts had ordered
the return of the child (in some cases only after lengthy procedures
at the appellate stage) and the application concerned the question
whether these return orders infringed the mother’s and the child’s
right to respect for family life. In all cases the ECtHR (eventually)
found an infringement of article 8 European Convention on Human
Rights (ECHR) based upon a too mechanical or not sufficiently detailed assertion of
the child’s interests.

Critics
of these decisions argue that the ECtHR does not pay due consideration to
the main purpose of the Hague Convention, the purpose being the
immediate return of the child subject to specified exceptions that
have been construed narrowly in case law. The principle of immediate
return is based upon the principle that the court of the jurisdiction
from which the child was abducted (the habitual residence) is better
suited to assess which custody situation and possible relocation is
in the best interest of the child.

Facts

The
facts of X v. Latvia were the following: the mother, originally
Latvian, had settled in Australia where she gave birth to a child in
2005. At the time of giving birth, the mother was still married to another
man than the father of the child. However, paternity (of any father)
was initially not established. The mother lived together with the
father, however, formally the father rented accommodation with the
mother who received single-parent benefits. The mother acquired
Australian nationality in 2007. The relationship between the mother
and the father deteriorated and in 2008 she left Australia for Latvia
taking the child, aged three years and five months, with her.

Subsequently,
the father submitted an application to the Australian Family Court to
establish parental rights in respect of the child and applied for the
return of the child under the Hague Convention. The Family Court
established his paternity on the basis of facts supplied by the
father (no DNA testing). It is further established that the mother
and father had had joint parental responsibility for their child
since birth (retroactively) in a decision dated 6 November 2008. The
mother had been invited to attend the hearing in person or to follow
the hearing by telephone but had not done so. She also did not appeal
the decision.

The
request for the return of the child is received by the Latvian
Central Authority in September 2008. The return request made by the
Australian Central Authority was accompanied by an affidavit
certifying, without prejudice to the issue of paternity (the decision
by the Australian Family Court had not been given yet) that on the
date the mother left Australia with the child, the father had
exercised joint parental responsibility over the child.

The
return request is heard in Latvia in two instances (district and
regional court) with the father being present for the proceedings.
Before the Latvian courts, the mother argued that the father did not
have “custody” rights as he had not sought to have his paternity
established prior to her departure from Australia. She further,
amongst others, argued that the father had acted abusively, that the
child was connected to Latvia and she also produced (at the appellate
stage) a certificate from a psychologist stating that the child would
suffer trauma if separated from the mother. In short, the Latvian
courts ordered the return of the child thereby refusing to review
Australian law concerning the custody rights of the father and
further dismissing the arguments raised by the mother considering
these to pertain to the merits of the custody issue which is for the
court of the habitual residence to decide (the Australian Family
Court). Following an “abduction” of the child in Latvia by the
father, the Latvian Central Authority assisted the father in
supplying information that authorized his right to return to
Australia with his daughter. The mother then brought an application
against Latvia before the ECtHR alleging an infringement of article 8
of the ECHR.

Comments

In our
opinion there are three intrinsically relevant issues in this case.
The first is the relationship between the Hague Convention and the
ECHR (1). The second is the understanding of the requirement of the
best interests of the child such as enshrined in article 3 of the UN
Convention on the Rights of the Child (2). A third essential issue in
this case concerns the question whether, in fact, there was a
wrongful removal contravening custody rights given the fact that the
mother was the sole legal parent at the time of the “abduction”.
This last issue will not be dealt with in this case note.

(1)
The first inherent issue concerns the relationship between the ECHR
and the Hague Convention as a matter of hierarchy of conventions –
does one of these conventions take precedence? The ECtHR found that
the relationship between the two conventions involves “a combined
and harmonious application” (para. 94) of both conventions. Article 8
of the European Convention on Human Rights is to be “interpreted in
the light of the requirements of the Hague Convention” but also in
the light of the Convention on the Rights of the Child, 1989 (CRC),
(para. 93). The Court also held that “consideration of international provisions
should not result in conflict or opposition (…) provided that the
Court is able to perform its task in full”, i.e. to ascertain
whether the requirements of the ECHR have been observed.
Consequently, the Court stressed the harmony of conventions, yet also
the obligation to ascertain independently the rights inherent to the
ECHR. Although not stated directly this does involve precedence of
the ECHR when the issue concerns the application of the Hague
Convention by an ECHR member state. The concurring opinion of judge
Pinto de Albuquerque is more direct as precedence is presumed (“the
latter should prevail over the former”, para. 43 of the judgment). In
our opinion the ECHR must have precedence, if one accepts that human
rights are fundamental rights,
the content being evolutive.

(2) An
understanding of the child’s best interests – an understanding of
these interests as relating to what is generally thought to be best
for children as a group and the understanding of the requirement that
a decision is in the (primary or paramount) interest of an individual
child. The Hague Convention may be viewed to operate primarily on the
understanding of what is best for children as a group. The
assumptions being that the operation of the convention may prevent
child abduction in the first place and that secondly the court of the
child’s habitual residence is better suited to assess the interest
of the individual child with respect to custody, care and possible
relocation. The main exception to returning the child being narrowly
construed to “grave risk” (article 13(b)). The understanding of
what is best for children as a group may be viewed as a legal
construction which may prove distant
from the reality of the individual child, for example, in situations
where the “abductor” is the primary carer who is unable or
unwilling to return with the child. At this point it must be kept in
mind that at the time of the draft of the Hague Convention, the issue
was more the abduction by the other non-custodial parent. Since then
underlying changes in national laws; the increasing allocation of custody
rights to both parents also after divorce and for unmarried parents,
even if one parent is obviously “a primary carer”, all lead to
concerns with respect to the narrow exception which in most cases
will result in a return order. Is the exception too narrow? Should
the welfare of an individual child be subsumed under the generally
constructed welfare of children?

The
dividing line between that which is considered to be best for
children as a group and in the primary interest of an individual
child is not clear from the CRC itself. The principle enshrined in
article 3 relates to both contexts (CRC General Comment No.
14(2013), IV, A(b) and (c)). Nonetheless, the interests of an
individual child cannot (necessarily) be understood “as being the
same as those of children in general”. Article 3(1) requires that
“the best interests of a child must be assessed individually”
(CRC General Comment IV A(c)). When it comes to custody decisions the
CRC comment stresses a best interest’s principle of the particular
(individual) child stating explicitly that it is contrary to those
interests “if the law automatically gives parental responsibilities
to either or both parents”. Yet with respect to the Hague
Convention no distinction is made, this convention is endorsed as a
facilitator of the child’s best interests (CRC General Comment No.
14(2013), V, 1(c), No. 67/68). Consequently, the dividing line
between an understanding of the best interest’s principle in
relation to children as a group and the individual child is unclear.
In our opinion the lack of clarity undermines any substantive content
of this principle.

We
therefore believe that the ECtHR got it “right” in this case by
stressing the assessment in relation to an individual
child rather than paying “lip
service” to the Hague Convention. This Convention may be viewed to
provide a “greater good”, yet it cannot ignore the reality of the
individual child in view of the fact that at times primary carers
can also be the main abductors.

Monday, 16 December 2013

It is my pleasure to introduce a guest post by my colleague here at SIM, dr Stephan Hollenberg, on the recent case of Al-Dulimi and Montana Management Inc v Switzerland, which focuses on UN sanctions. Stephan defended his PhD last year on judicial protection of human rights against decisions of the United Nations Security Council (UNSC). Here are his comments on the case:

Al-Dulimi and Montana Management Inc v
Switzerland

Stephan Hollenberg

Introduction

Mr Al-Dulimi
allegedly was the finance manager for the Iraqi secret services under Saddam
Hussein. His assets and of a company of which he was managing director have
been frozen following a Security Council resolution imposing sanction
measures against the ancient regime
of Iraq, as implemented against him by Switzerland. Under this sanctions
regime his assets not only had to be frozen but also confiscated and transferred
to the Development Fund for Iraq.

In response,
Mr Al-Dulimi complained before the Swiss Federal Court that he was not informed
of the reasons underlying the decision to impose the sanction measures against
him and he was not afforded any due process guarantees under article 6 ECHR. In
2008 the Swiss Court decided that it was not competent to engage in a judicial
review of the implementation of the UNSC decision. Any decision on de-listing
could according to the Swiss Court only be made by the relevant UNSC Sanctions
Committee. Hereupon Mr Al-Dulimi filed a compaint with the ECtHR, among others,
claiming a violation of his right to access to court.

The case
raises the issue of precedence of obligations created by the UNSC over those
under the ECHR, which the Court was confronted with earlier in the cases of Al-Jedda and Nada. Especially, the Nada
case, concerning an individual directly targeted by UNSC sanctions against
alleged financers of international terrorism, bears essential similarities to
the present case. In the Nada case the
Grand Chamber considered Switzerland
to have violated Mr Nada’s rights to private and family life and his right to
an effective remedy, by implementing too strictly the travel ban imposed by the
UNSC, and by not affording him any possibility for review.

Presumption of Compliance

In the
cases of Al-Jedda and Nada the Court developed and employed the
interpretative technique of presumption of compliance. In those cases the Court
established that in addition to maintaining international peace and security,
the purposes of the UN include encouraging respect for human rights and
fundamental freedoms as well. From this it derived that there must be a
presumption that the UNSC does not intend states to take measures that would
result in a breach of their obligations under international human rights law.
Hence the Court determined that when the meaning of a particular provision of a
UNSC resolution is unclear, the interpretation that harmonizes the obligation
created by the UNSC most with the states’ obligations under international human
rights law must be followed. It added that the presumption could be rebutted
when the UNSC uses clear and explicit language to that effect. It did however
not indicate explicitly what the consequences of such rebuttal would be. Even
in the Nada case, in which it found a
rebuttal of the presumption, it did not consider what the consequences thereof
would be.

It was to
be expected that the Court would employ this same interpretative technique in
regard to the interferences with Mr Al-Dulimi’s human rights following from Switzerland’s
implementation of the impugned UNSC resolution. However, the Court (Second
Section) distinguished the Al-Dulimi from
the Nada case, on the basis of a
perceived difference in scope of discretion left by the UNSC for the
implementation of the measures imposed by the relevant UNSC resolution. Subsequently,
it employed the familiar concept of equivalent protection, which it developed
in the context of obligations created by the EU (see Bosphorus).

There are
two problems with this approach. First, the scope of discretion left by the UNSC
resolutions concerned in Al-Dulimi
and Nada appears to be the same.
Second, in regard to instances in which no scope of discretion is left by the
UNSC the presumption of compliance would appear a more appropriate approach to
follow than that of equivalent protection.

Scope of Discretion

For UNSC
resolutions to become effective they need to be implemented by UN member states
in their respective domestic legal orders. The UNSC usually formulates a
certain aim or result that needs to be achieved, it is then for states
themselves to determine how best to do that. Therefrom emanates a scope of
discretion. However, in regard to the targeted sanctions regimes it can hardly
be maintained that there is any scope of discretion for states. The obligation
to freeze assets is phrased by the UNSC as an obligation of conduct, leaving
hardly any scope of discretion for states to implement these measures as they
deem fit. They have no other possibility but to freeze the assets of the
individuals designated by the relevant UNSC sanctions committee. Moreover, this
conduct (and result) may be interfered with if states would provide an
opportunity for fair trial or an effective remedy to the individuals concerned.
Therefore, despite the fact that the relevant resolutions remain silent on
possibilities to afford due process guarantees while implementing these
sanction measures, it must be assessed as falling outside the states’ scope of
discretion. Thus providing such guarantees would go against the obligation
created by these resolutions.

However, the
Grand Chamber accepted in Nada that
the UNSC had left states a certain scope of discretion. Similarly, the Court of
Justice of the EU had held earlier in the Kadi
case that such discretion existed in relation to the implementation of the
targeted sanctions. These courts arrived at this conclusion by arguing that the
UN Charter does not prescribe how states should implement UNSC resolutions,
rather than looking at the text of the relevant resolution. These courts’
approach is not very compelling because if the UNSC would impose a clearly circumscribed
obligation of conduct, then any scope of discretion that might emanate from the
fact that the UN Charter does not prescribe how to implement that obligation is
illusory. States can then do no other but to engage in the conduct prescribed.
Moreover, following these courts’ reasoning every UNSC resolution would leave
states a scope of discretion. However, in the present instance of the Al-Dulimi case, the Court accepted that
the UNSC left no such scope. On the basis of this finding it distinguished it from the
Nada case (see paragraph 117). It did
not further clarify how it arrived at that determination. It only considered
that such a difference exists.

As was
mentioned, this difference cannot be arrived at by relying on the argument of
the UN Charter not prescribing how to implement, because that is exactly the
same in both situations. However, also when comparing the two provisions
concerned in the relevant UNSC resolutions a distinction is not immediately
obvious. Especially when the limitation of the right to a fair trial in the
present instance is compared to the limitation of Mr Nada’s enjoyment of his
right to an effective remedy, it becomes clear that the relevant provisions are
significantly similar. Both resolutions decide merely that states should take
the measures prescribed against the individuals designated by the relevant UNSC
Sanctions Committee. They do not explicitly address the issue of a fair trial
or an effective remedy, but it is implied in the system of the centralized
sanctions regime that such due process guarantees were not foreseen by the
UNSC. Providing such guarantees at a domestic level would automatically impair
the effectiveness of the centralized sanctions regime. It might result in a
fragmented application of the sanction measures. Accordingly, there appears to
be no difference in the scope of discretion left by the UNSC in regard to the
two different sanction regimes.

The UNSC
resolution relevant to Mr Al-Dulimi does mention that ‘claims made by private individuals
or non-government entities on [funds transferred to the Development Fund for
Iraq] may be presented to the internationally recognized, representative
government of Iraq.’ This might suggest that Mr Al-Dulimi’s only remedy
foreseen by the UNSC is via the Iraqi government, and therewith a contrario excluding other
possibilities. But the context of this provision indicates that it must be concerned
with the claims of others than the targeted individual. Moreover, the Court
does not consider this aspect of the provision at all.

Equivalent Protection

After
having distinguished Al-Dulimi from Nada, the Court engaged in an equivalent
protection test. This test entails that if the Court is asked to review a
state’s conduct that was strictly required by that state’s membership of an
international organization, it presumes that the state did not act in
contravention of the ECHR if the international organization in question
protects human rights in a manner that is at least equivalent to the protection
offered by the Convention. If a presumption of equivalent protection is then established
this can only be rebutted when in a particular instance the protection was
manifestly deficient. The Court employed and developed this test primarily in
the context of the relationship between the ECHR and the EU.

Applying
this test similarly in regard to the UNSC is highly remarkable. Especially,
since the Court appears to have gone through a lot of effort in earlier cases
in order to avoid applying it in that context, due to the special task and
position of the UNSC (see the cases of Behrami;
Beric; Kanlinic and Bilbija; Galic;
and Blagojevic). In addition, it is
hardly conceivable that an organization such as the UN would ever be able to
provide a measure of equivalent protection to individuals directly affected by
a UNSC resolution.

Also,
logically speaking it does not make sense to assess a situation concerning a
UNSC decision that does not leave a scope of discretion within the context of
the equivalent protection rather than consider it to be a rebuttal of the
presumption of compliance. In this regard, the Court appears to make a
distinction between latitude for interpretation following from ambiguous
language and the scope of discretion. Such distinction is however difficult to
maintain. Scope of discretion and room for interpretation are closely
intertwined. Scope of discretion often emanates from what a resolution is
silent about.

Moreover,
if the presumption of compliance would only be employed in cases where there is
a scope of discretion then the Court would assess a respondent state’s conduct
that is not necessarily required by the UNSC. That state had an opportunity to
implement the UNSC decision differently within the latitude left by the scope
of discretion. Hence there is no conflict of norms. Therefore it cannot be
maintained that the respondent state was under an obligation to give precedence
to an obligation created by the UNSC over obligations under other international
agreements, pursuant to article 103 of the UN Charter. Consequently, a rebuttal of
a presumption by employing clear and explicit language would not be relevant,
because the respondent state could have acted otherwise within the scope of
discretion.

Actually,
this appears to be the result in the Nada
case in which the presumption of compliance was rebutted but in which the Court
also found a certain latitude for Switzerland to implement the sanctions in
accordance with the ECHR. But this would mean that the whole doctrine of
presumption of compliance (or at least the option for its rebuttal) loses its
meaning. The UNSC will then never be able to override states’ obligations under
the ECHR. That is a position one could defend, but perhaps it would be better
if that would be phrased in clear and explicit language.

Violation of Article 6

Whatever
could be said of that, the Court concluded that no presumption of equivalent
protection could be established and that therefore it had to fully scrutinize
the lawfulness of the interference with the applicant’s right to a fair trial - just
like the Grand Chamber did in regard to article 13 in the Nada case. In that sense, the present decision could also be seen
as making explicit what remained unmentioned in the Nada case. There the Court did not explicitly apply the equivalent
protection doctrine but did establish that the protection afforded at the UN
level was not considered to be sufficient. That is to say, the Grand Chamber
followed the Swiss Federal Court’s evaluation of such protection it made five
years earlier. That was before all the recent amendments were made to the
de-listing procedure, such as the institution of the Ombudsperson in 2009. In
that sense, the Court’s Chamber in the Al-Dulimi
case went a bit further and relied on a recent rapport by UN’s Special Rapporteur
on the promotion and protection of human rights while countering terrorism (Ben
Emmerson) in holding that the present Ombudsperson procedure does not afford
sufficient guarantees. Therefrom it deduced that the mere Focal Point presently
available to Mr Al-Dulimi, which obviously affords a lower level of protection
than the Ombudsperson, can a fortfiori
never provide sufficient guarantees.

It has to
be noted, however, that with regard to the possibility to ensure the
individuals’ right to a fair trial there is an important difference between the
targeted sanctions against people such as Mr Kadi and Mr Nada and those against
Mr Al-Dulimi. The first two are anonymous individuals allegedly involved in
financially supporting international terrorism. Such allegations can often only
be substantiated by relying on confidential material, gathered by national
intelligence agencies, which is not likely to be shared with the targeted
individual or with foreign courts. In contrast, the question whether Mr
Al-Dulimi was indeed the finance manager for the Iraqi secret services under
Sadam Hussein is in principle publicly available information. In a cable, made
public by Wikileaks, the US State Department, which already in 2008 foresaw
this decision by the ECtHR, asked for additional information on the allegations
against Mr Al-Dulimi. The cable notes that ‘Al-Dulimi denies he was ever a
member of the Baath Party, and further denies he was "a director of investments
for the Iraqi Intelligence Service" under Saddam Hussein.’ Therefore the
US Embassy in Baghdad was instructed to ask the Iraqis whether they could
provide further information about what Al-Dulimi did for the Saddam Hussein
regime. According to the Iraqis it was public information that Mr Al-Dulimi
held that position and that he was one of the senior officials of the former
Iraqi regime. This statement might not be sufficient, but perhaps some official
documents might do. At least this makes it easier to organize a fair trial for
people such as Mr Al-Dulimi than for those such as Mr Kadi and Mr Nada. An example
thereof can be found in the recent decision of EU’s General Court in the case
of Makhlouf, concerning sanction
measures against members of the Syrian regime.

Conclusion

The
decision by the Second Section of the ECtHR is another example after decisions
by the Grand Chamber (Nada) and the Court
of Justice of the EU (Kadi) that the
European judiciary is not going to back down and is seeking full confrontation
with the Security Council. This obviously is putting member states in a very
difficult situation. They are under two conflicting international obligations,
which are very difficult to harmonize. This confrontational approach might
eventually result in better protection at the UN level. The UNSC, seeing its
efficacy and efficiency of action undermined by substantial annulments of
domestic implementations, might be willing to adjust its measures to the requirements
upheld by these courts. However, for such approach to be effective these courts
need to maintain a dialogue with the Security Council. In that regard, the
Second Section’s use of the equivalent protection doctrine in the Al-Dulimi case, which might indicate that
it is willing to engage in such dialogue, is to be preferred over the Court of
Justice’s decision in its latest Kadi
case, in which it largely ignored the progress being made at the UN level. The
difficulty, however, remains that equivalent protection at UN level is very
unlikely ever to be achieved in regard to individuals directly affected by a
Security Council decision. A mere possibility for review would probably not be
sufficient, also substantive human rights guarantees would have to be in place.
This will be very difficult to realize in the primarily inter-governmental
setting of the UN.

Thursday, 12 December 2013

Even long before a future entry into force of Protocol 15 to the ECHR which will render the time limits of applying to the Court shorter, changes are around the corner: as of 1 January 2014 a new rule 47 of the Rules of Court will enter into force. The changes, like many previous reforms are geared towards increasing the efficiency of handling complaints. It adds two requirements to the way in which complaints should be lodged with the Court:

1. Application forms sent to the Court must be completed in full and must be accompanied by copies of the relevant documents. A failure to do so, will lead to a rejection of the application.

2. In addition, a change is made to "the interruption of the period within which an application must be made to the Court, that is, within six months from the final decision of the highest domestic court with jurisdiction; for the period to be interrupted, the application will now have to fulfill the conditions set out in Rule 47. The form must be sent to the Court, duly completed and accompanied by the relevant documents, within the period laid down by the Convention. Incomplete files will no longer be taken into consideration for the purpose of interrupting the running of the six-month period."

To enable applicants to lodge a complaint, a new simplified application form will be put on the Court's website on 1 January. More precision and due care is thus asked of the applicants. The full press release can be found here.

Wednesday, 11 December 2013

The newest edition of the René Cassin Human Rights Moot Court has been launched. The French-language competition will take place at the European Court of Human Rights in Strasbourg on 10 and 11 April 2014. The time schedule, including deadlines for participation, can be found here. As in previous editions, the organisers emphasize that it isan entertaining legal exercise for students ("il s'agit de s'amuser avec le droit, pour le droit et autour du droit.").

The case itself, written this year by professor Jean-Pierre Marguénaud, about allegations against a cyclist of doping usage can be found here.

* Triestino Mariniello, ‘The ‘Nuremberg Clause’ and Beyond: The Legality
Principle and Sources of International Criminal Law in the European Court's
Jurisprudence’, Nordic Journal of International Law, vol. 82, no. 2 (2013):

Legislative acts or constitutional courts’ decisions allowing
the prosecution of alleged perpetrators of international crimes committed in the
past continue to attribute to the legality principle a central role within
domestic criminal proceedings or complaints before the European Court of Human
Rights. This article assesses the evolution of the recent jurisprudence of the
Strasbourg Court, which in the 2008 Korbely and Kononov cases for the first time
extended the standards of the legality principle over war crimes and crimes
against humanity. It examines the rationale for this development, which
constitutes an attempt by the Court to restore a proper balance between
substantive justice and individual protection, by ascertaining whether domestic
convictions were consistent with the qualitative elements of the legality
principle, such as accessibility and foreseeability. Through a detailed analysis
of the European jurisprudence, the article argues that, although the new
approach of the Court entails in abstracto a strengthening of individual
safeguards from the arbitrariness of state power, the meaningful protection of
the legality principle may be in concreto significantly narrow. The reasons for
such a result are two-pronged: first, the Court seems to provide an
interpretation of past law which radically diverged from the interpretation of
the law in place in the legal system at the material time of the events; second,
the international sources accepted by the Court as a valid basis for the
applicants’ convictions – pursuant to the standards of the legality principle –
were intended to create obligations only upon states, rather than
individuals.